Cervena v. Thurston

• Decision Date: 06 December 1899
• Docket Number: 9,047
• Citation: 80 N.W. 1048,59 Neb. 343
• Parties: W. M. G. CERVENA ET AL. v. WILLIAM THURSTON
• Court: Nebraska Supreme Court

80 N.W. 1048

59 Neb. 343

W. M. G. CERVENA ET AL. v. WILLIAM THURSTON

No. 9,047

Supreme Court of Nebraska

December 6, 1899

ERROR from the district court of Gage county. Tried below before LETTON, J. Reversed.

REVERSED.

Samuel Rinaker and R. S. Bibb, for plaintiffs in error.

George A. Murphy and William C. Le Hane, contra.

OPINION

NORVAL, J.

William Thurston brought ejectment to recover a small strip of land the petition containing the usual averments in an action of that kind. The defendants answered by a general denial, and also pleaded ten years' adverse possession. This last defense was put in issue by the reply. Verdict was for plaintiff, and defendants have prosecuted error from the judgment entered thereon.

It is first insisted that the verdict was insufficient. No objection as to the form of the verdict having been made at the time it was returned into court, the point is not available here. See Parrish v. McNeal, 36 Neb. 727 55 N.W. 222; Roggenkamp v. Hargreaves, 39 Neb. 540, 58 N.W. 162; Crooker v. Stover, 41 Neb. 693, 60 N.W. 10. It is true, objection to the verdict was first made in the motion for a new trial; but this was too late to be of any avail. See Brumback v. German Nat. Bank, 46 Neb. 540. The verdict, however, was sufficient in form and substance, although a specific description of the real estate was not therein given. The jury, in their verdict, found that plaintiff was the owner and entitled, at the commencement of the action, to "the strip and parcel of land described in the plaintiff's petition." The real estate in controversy was specifically described in the petition, and the description referred to and made a part of such verdict. This was sufficient.

Objection is made to the giving of the following instruction tendered by the plaintiff: "1. If you find from the evidence in the case that the plaintiff has a deed to the whole north half of the northeast quarter of section 35, and that he used said eighty acres continuously and uninterruptedly, including the strip in question, for any considerable portion of the time during the last ten years before the filing of this petition, then your verdict should be for the plaintiff unless you find that the strip in question belongs to the south half of the northeast quarter of said section 35; and the fact that the defendant may have used the strip of land in dispute, in common with the plaintiff, during the whole period of ten years, will not vest the title of the land in him, and he can not recover under a claim of adverse possession." This instruction was faulty, in that it advised the jury that the defense of adverse possession could not avail, if they found that the plaintiff, continuously and uninterruptedly, used the...